A mother whose children were removed from her care against their wishes after an unregulated psychologist said she had “alienated” them from their father has lost a high court appeal to have her case reopened.
The landmark test case came before the president of the family division in England and Wales, Sir Andrew McFarlane, who has said he will reinforce the need for the courts to follow guidance on appointing experts in his forthcoming judgment.
During the public hearing, held remotely, the court heard that under the current rules “anyone can call themselves a psychologist” and that there was no definition of “an expert”.
The appeal came after a judge in Peterborough refused to order a re-hearing after the mother complained that the psychologist who assessed her children was “not an appropriately qualified expert”.
Judge Lindsay Davies ruled the children should move to live with their father after accepting Melanie Gill’s “conclusions about alienation”.
Gill was appointed in 2020 after being put forward by the children’s guardian, the Children and Family Court Advisory and Support Service (Cafcass), but her CV was not properly scrutinised prior to her instruction, lawyers for the Association of Clinical Psychologists UK (ACP-UK) told the hearing on Tuesday.
Barbara Mills KC, who was representing the professional body as an intervenor in the case, asserted that in the absence of regulation, the onus was on Gill to satisfy the court she was qualified to do the work she was instructed to carry out.
Mills said that if her CV had been before the court and current Family Justice Council guidance had been applied, Gill “would simply not have been instructed”.
McFarlane said: “The guidance is admirable and is to be followed but someone who does not follow it is not acting unlawfully.” He added: “The fact nobody looked at her CV does not mean that she is not qualified.”
Representing Gill, Andrew Bagchi KC rejected the criticisms of Gill and said the burden was not on her to prove her qualifications. He said she had made clear at the outset what the scope of her work would entail, adding that the appeal was not a “conventional” one and had become a “technical debate”.
At a previous hearing, he claimed his client had been the victim of a “witch-hunt”.
Bagchi told the hearing that beyond supplying her CV Gill had emailed the solicitor for Cafcass “explaining she was neither a doctor, nor regulated and what her approach would be”. She “outlined her training in child and adult psychological assessments”, said Bagchi.
In a written case outline, Bagchi said Gill had been clear “she is not trained in any of the types of psychology regulated by the HCPC [Health and Care Professions Council]”.
He added: “Anyone can call themselves a psychologist as long as they do not use one of seven protected titles. If the ACP-UK want this changed they should talk to parliament about it.”
Representing the mother, Joy Brereton KC argued Gill was a “risk to the public” and that psychologists were regulated to protect the public.
She said “nobody checked” Gill’s qualifications at the start of process. “So what we are left with ultimately is an expert in inverted commas, somebody who calls herself a psychologist who didn’t really go through with the relevant processes. And I hear what you say, ‘this is just guidance’. But what is the point, with the greatest respect, of having Family Justice Council guidance … ?”
McFarlane responded: “I wasn’t belittling the guidance. I was looking for an authoritative statement that said this person is or is not a psychologist, or is or is not entitled to be an expert because that is the way it is being put and the guidance falls short of that bright-line character.”
He added: “You can rest assured the judgment from this hearing will reinforce the need for the courts to follow the guidance.”
Brereton said only psychologists who came into contact with the public were regulated, so academics who did not work with the public could also give their opinions.
But she added: “Ms Gill doesn’t fall into that category. She provides the court with assessments. She is technically a risk to the public when she is carrying out those assessments and I pose this question: why wouldn’t the family court use this hearing as an opportunity to flag up that as a justice system we shouldn’t be instructing unregulated psychologists?”
But McFarlane dismissed the appeal, adding: “Part of the judgment will be to look at the bigger picture and to offer guidance but I am clear that the appeal on the substantive issue should be dismissed.”
The judgment will be handed down at later date.
